Did We Learn Anything New in Comey's SSCI Hearing?

Former FBI Director James Comey testified for a little under three hours this morning in an open session before the Senate Intelligence Committee. Considering the detailed revelations included in his written statement released by the Senate Intelligence Committee yesterday in the lead-up to today’s testimony, how much new information did today’s hearing really add? Below is a brief overview of what the hearing added in terms of additional information or new confirmation of previously reported facts.

Comey’s beliefs about his firing

Some of the most significant portions of Comey’s testimony pertained to his thoughts and impressions about known events in the months leading up to his firing on May 9. Most notably, Comey stated, for the first time publicly, that he believes he was fired because of his role in the Russia investigation. Comey also confirmed that his firing took him by complete surprise and stated that the administration's "initial explanation and "shifting explanations" both “confused” him and “increasingly concerned” him. He didn’t mince words in criticizing the administration on this score and went far as to suggest these explanation were provided in bad faith:

[A]lthough the law required no reason at all to fire an FBI director, the administration then chose to defame me and more importantly the FBI by saying that the organization was in disarray, that it was poorly led, that the workforce had lost confidence in its leader. Those were lies, plain and simple.

Comey’s reason for writing memos, including unclassified ones

In his prepared statement, Comey explained that he wrote memos following each one-on-one interaction he had with President Trump. In today’s testimony, he offered a more detailed rationale for why he felt compelled to do so. Comey referred to “a combination of things,” including the circumstances (”I was alone with the President”), the subject matter (matters that touch on FBI's core responsibility and relate to the president personally), and the nature of the person he was interacting with (“I was honestly concerned he might lie about the nature of our meeting.”). Comey said he had never experienced this combination before and felt compelled to “write it down and write it down in a very detailed way.”

Comey expressly differentiated the way he felt when he famously recorded an interaction with President Bush from the hallway outside the Situation Room: “I sent an email to my staff but I didn't feel with President Bush the need to document it in that way.”

Comey also confirmed that he wrote a purposely unclassified memo memorializing his February 14 conversation with Trump, in which Trump suggested that he ought to pull back on the Flynn investigation. Senator Mark Warner (D-VA) said, “I found it very interesting that … you made clear that you wrote that memo in a way that was unclassified… [W]as that because you felt at some point, the facts of that meeting would have to come clean and come clear … in a way that could be shared with the American people?” Comey responded that he believed his interaction with Trump was a “very disturbing development” and he needed to “document it and preserve it in a way.” Comey noted that “sometimes when things are classified, it tangled them up.” He specifically wrote the memo in an unclassified form because classified information can be “hard to share within an investigative team … If I write it in such a way that doesn’t include anything of a classification, that would make it easier for us to discuss within the FBI and the government, and to hold onto in a way that makes it accessible to us.”

Comey confirmed that he created records after all or "nearly all" of his conversations with President Trump. As noted in Comey’s prepared statement, released by the Senate Intelligence Committee yesterday in the lead-up to today’s testimony, Comey and Trump had nine such conversations between January 6 and April 11.

In his written statement, Comey focused on three meetings (the January 6 briefing, January 27 dinner, February 14 Oval Office meeting) and two phone calls (March 30, April 11). Because Comey referenced nine one-on-one interactions, this left four calls unaccounted for. In today’s hearing, Comey also provided an account of the missing four calls:

Shortly before the inauguration, Trump called to follow up on the January 6 briefing--to insist the Steele dossier was inaccurate--and and told Comey he was “doing a great job.”

On January 27, Trump called Comey to invited him to dinner that evening, where the President reportedly requested his loyalty.

Trump called Comey just before he was about to get on a helicopter with the head of the DEA to exchange pleasantries and tell him that he was doing “an awesome job.” Comey estimated that this call may have taken place on March 1.

At some point the two had a secure call about an unrelated operational matter, which Comey described as “totally appropriate.”

Press disclosures of the contents of the February 14 memo

The week after his firing—and three days after Trump tweeted, on May 12, that Comey “better hope that there no tapes” of their conversation—it occurred to Comey that "there might be corroboration" for his conversation with Trump. Comey asked a friend to share the unclassified memo documenting his February 14 conversation with a reporter. In his testimony, Comey identified the friend as a professor at Columbia Law School; his identity has been confirmed as Daniel Richman.

Comey stated, “My judgement was, I need to get that out into the public square.” He specifically wanted to release the contents of the memo “because I thought that might prompt the appointment of a special counsel.”

On May 16, the New York Times published its story on Trump’s conversation with Comey about dropping the Flynn investigation, and on the existence of a memo by Comey corroborating the interaction. Special Counsel Robert Mueller was appointed the following day.

The FBI decision to tell Trump there was no open investigation

Senator James Risch (R-ID) asked Trump point-blank whether he was willing to confirm that “while [he was] director, the president of the United States was not under investigation.” Comey confirmed this was a fair statement.

In his prepared testimony, Comey also indicated that he and FBI leadership had agreed that Comey should inform Trump that there was not an open counterintelligence file on him “if circumstances warranted”; Comey decided to provide Trump with this information on January 6. In his testimony today, Comey noted that he did not use the term “counterintelligence” in his statement of reassurance to Trump.

In today’s hearing, Comey revealed that this decision by the FBI leadership was not unanimous:

One of the members of the leadership team had a view that although it was technically true we did not have a counter-intelligence file case open on then President-elect Trump. His concern was because we're looking at the potential, again, that's the subject of the investigation, coordination between the campaign and Russia, because it was President Trump, President-elect Trump's campaign, this person's view was inevitably his behavior, his conduct will fall within the scope of that work. And so he was reluctant to make the statement. I disagreed. I thought it was fair to say what was literally true. There was not a counterintelligence investigation of Mr. Trump, and I decided in the moment to say it, given the nature of our conversation.

Comey indicated that he later had a similar conversation with the individual, whose opinion had not changed on the matter and remained the same “throughout.”

The February 14, 2017 Trump/Comey meeting

In a key exchange with Senator Warner, Comey offered his personal impressions of his February 14, 2017 meeting with Trump in the Oval Office the day after Flynn’s firing, when Trump deliberately cleared the room after an intelligence briefing to speak with Comey. In his prepared statement, Comey had noted that Attorney General Jeff Sessions "lingered" and that Trump’s son-in-law and senior adviser Jared Kushner was the last to exit, but that Trump asked both to leave; Trump also waved away his chief of staff Reince Priebus when he looked in some minutes into the conversation. In his testimony, Comey added details about his impression of the extraordinary nature of Trump’s insistence on speaking with him privately and how he interpreted Sessions and Kushner’s attempt to stick around.

Warner: [T]he president asked everyone to leave, including the attorney general to leave, before he brought up the matter of general Flynn. What was your impression of that type of action? Have you ever seen anything like that before?

Comey: No. My impression was something big is about to happen. I need to remember every single word that is spoken, and again, I could be wrong, I'm 56 years old, I've been, seen a few things, my sense was the attorney general knew he shouldn't be leaving which was why he was leaving and I don't know Kushner well but I think he picked up on the same thing so I knew something was about to happen that I needed to pay very close attention to.

When asked why the American public should believe his account over the White House's, Comey made clear just how significant he believes it is that Trump cleared the room to speak to him privately:

Of significant fact to me is so why did he kick everybody out of the Oval Office? Why would you kick the attorney general, the president, the chief of staff out to talk to me if it was about something else? So that, to me, as an investigator, is a significant fact.

Later, when Senator Joe Manchin (R-W.Va.) asked Comey if he had ever considered why Sessions was not asked to stay in the room on February 14, Comey confirmed he had (though he was cut off as he began elaborating). When Manchin asked whether Sessions had ever inquired about Comey’s meetings with Trump, Comey said he had not.

Who knew about Trump’s behavior toward the FBI?

Comey stated that he discussed Trump's February 14 conduct with FBI senior leaders: his chief of staff (Jim Rybicki), the deputy director (Andrew McCabe), the deputy director’s chief counsel, general counsel of the FBI (Jim Baker), “and then, more often than not, the number three person at the FBI, the associate deputy director” (David Bowdich). “A few of the conversations” also included the head of the national security branch (Carl Ghattas).

During one phone call in which Trump called Comey at the FBI without advance warning, Comey’s chief of staff, Rybicki, was sitting in Comey’s office and overheard Comey’s end of the call.

Two additional people were made aware of Comey’s general concerns about Trump: Comey testified that he expressed not only to Sessions but also to newly-minted Deputy Attorney General Rod Rosenstein his “serious concern about the way in which the president is interacting, especially with the FBI.” This means that when Rosenstein penned the memo initially used by the White House to justify Comey’s firing, not only did Rosenstein already know Comey would be fired but also that he produced it notwithstanding his familiarity with Comey’s concerns about the propriety of the president’s conduct toward the FBI and its Russia probe.

The role of Attorney General Jeff Sessions’s likely recusal

Comey detailed the decision that he and the FBI leadership made to not discuss the President's February 14 conduct with Sessions. Echoing his prepared testimony, Comey explained that they believed Sessions was "very close to and inevitably going to recuse himself.” But he added: “We also were aware of facts that I can't discuss in an opening setting that would make his continued engagement in a Russia-related investigation problematic.”

Note by this time in February there had been some generic calls for Sessions to recuse himself from the Russia investigation based on his role in the Trump campaign. But it wasn’t until two weeks later, on March 1, that the Washington Postbroke that in the lead-up to the election Sessions and Russian ambassador Sergey Kislyak had two meetings that Sessions did not disclose when asked about contacts with Russian officials during his confirmation hearing. The next day, Sessions recused himself "from any existing or future investigations of any matter relating in any way to the campaigns for president of the United States."

Comey’s answer to why he did not loop in Sessions could be a reference to the Kislyak interactions, but his phrasing also suggests that the intelligence community may have some still-nonpublic information that made Sessions’s recusal a sure thing. The confidence of Comey and the FBI leadership that Sessions would soon recuse seems potentially significant. Note that this whole line of speculation, and the basis for Comey’s certainty about Sessions’s impending recusal, seem to be at odds with the statement issued by the Justice Department today emphasizing that Sessions's participation in President Trump's campaign was the only reason for his recusal.

Whether the intelligence community has more more information about Sessions in connection with the Russia investigation is a question that remerged recently. Last week CNN reported that the FBI and Congress are examining intelligence suggesting a private encounter between Kislyak and Trump, Sessions and Kushner at a Trump campaign event sponsored by a pro-Russia think tank and held at the Mayflower Hotel on April 26, 2016. But a Justice Department spokeswoman stated last week in response to the story, "The facts haven't changed; the then-Senator did not have any private or side conversations with any Russian officials at the Mayflower Hotel." Further complicating things, this evening CNN reported that Sessions may have had another meeting with Kislyak, Mayflower event aside. The Justice Department has not yet responded to this latest report.

The February 14, 2017 New York Times story

Comey testified that the New York Times’ bombshell February 14 story (headline: “Trump campaign aides had repeated contacts with Russian intelligence”) was mostly inaccurate. In response to questioning from Senator Risch, Comey stated that "[i]n the main, it was not true" and affirmed when asked by Senator Tom Cotton (R-AR) if would “be fair to characterize that story as almost entirely wrong.” It’s not clear which pieces were false, but Comey may have provided a hint when he summed up the story as being “about allegedly extensive electronic surveillance in their communications” (not clear if “their” refers to Trump associates or the Russians).

Recall that the Times story contained a number of substantial allegations: it reported that phone records and intercepted calls showed "repeated contacts" between Trump campaign associates and senior Russian intelligence officials in the year leading up to the election; named four Trump associates as persons of interest—Paul Manafort, Carter Page, Roger Stone, and Michael Flynn; emphasized the FBI's alleged inquiry into Manafort (other than Flynn, Manafort was the only one identified as an individual whose calls had been intercepted); and asserted that "the FBI asked the NSA to collect as much information as possible about the Russian operatives" on those calls. It’s not clear which of these allegations is false.

In a response to Comey's testimony on the article, the Times published a response. The Times story notes some details have been corroborated by other officials; for example, in his testimony before the House Intelligence Committee last month, former CIA Director John Barennan stated: “I encountered and am aware of information and intelligence that revealed contacts and interactions between Russian officials and U.S. persons involved in the Trump campaign that I was concerned about because of known Russian efforts to suborn such individuals.”

The Clinton email server investigation and Attorney General Loretta Lynch

At several points, the questioning turned to Comey's handling of the Clinton email server investigation. In response to a question from Senator Richard Burr (R-NC), Comey confirmed that his decision to go public with the results of the investigation was influenced by then-Attorney General Loretta Lynch's meeting on the tarmac with Bill Clinton. Comey stated he felt he needed to "protect the credibility" of the investigation and further noted that "other things" contributed to his decision.

He named two items: One he declined to describe, except to say the committee had been briefed on it and that "there's been some public accounts of it which are nonsense." Presumably he was referring to the media reports late last month that a fake Russian document about Lynch affected his handling of the case. Second, Comey provided this bit of news: at one point Lynch directed him not to call the Clinton case an investigation, “but instead to call it a matter.” Comey said he was “confused” and “concerned” by this and that it helped lead him to conclude he needed to “step away” from the Justice Department to credibly close out the case.

Jane Chong is Deputy Managing Editor of Lawfare and National Security and Law Associate at the Hoover Institution. She served as a law clerk on the U.S. Court of Appeals for the Third Circuit and is a graduate of Yale Law School and Duke University.

Susan Hennessey is Managing Editor of Lawfare and General Counsel of the Lawfare Institute. She is a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.

Quinta Jurecic is an Associate Editor of Lawfare and a research analyst at the Brookings Institution, where she focuses on national security law and policy. She was previously a National Security Intern at Brookings. She graduated from Wesleyan University in 2015, where she completed an honors thesis on moral theories of political leadership and drone warfare under the Obama administration.